Section 26 – Refusal to issue order
Refusal to issue order - s. 26(1)
Subsection 26(1) imposes an obligation on an employment standards officer to notify a complainant of his or her decision not to issue an order to repay fees or costs, a compensation order, a reinstatement order, or a compliance order in respect of a complaint. The officer must notify the complainant in accordance with s. 110(1) of the Employment Standards Act, 2000 which requires that a letter advising of the refusal be served in accordance with s. 95 of the Employment Standards Act, 2000. (Note that the notification obligation does not apply in the case of non-complainants.)
Deemed refusal - s. 26(2)
This provision provides that where no order is issued within two years after the complaint was filed, then the employment standards officer shall be deemed to have refused to issue an order on the day before the two-year limitation period expires. Therefore, if during the two years after the foreign national files a claim, the officer neither issues an order, nor refuses to issue an order, then the officer will be deemed to have refused to issue an order on the day before the two-year period expired.
This provision is meant to address the unfortunate and rare event that an employment standards officer has neither issued an order nor refused to do so during the two-year limitation period set out in s. 28 of the Act. By deeming the officer to have refused to issue an order, the provision triggers the right of the foreign national to apply for a review by the Ontario Labour Relations Board under s. 29(3). The foreign national would have 30 days from the day before the two-year period expires in which to apply for a review of the officer’s deemed refusal.